Petition for Writ of Certiorari — Sylvia Gonzalez, Petitioner v. Edward Trevino, II, et al.
Supreme Court briefApr 20, 2023
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No. _______
In The
Supreme Court of the United States
SYLVIA GONZALEZ,
Petitioner,
v.
EDWARD TREVINO, II, MAYOR OF CASTLE HILLS, SUED
IN HIS INDIVIDUAL CAPACITY, ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
DANA BERLINER
ANYA BIDWELL
Counsel of Record
PATRICK JAICOMO
WILL ARONIN
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
(703) 682-9320
abidwell@ij.org
Counsel for Petitioner
i
QUESTIONS PRESENTED
In Nieves v. Bartlett, this Court held that probable
cause does not bar a retaliatory arrest claim against
a “police officer” when a plaintiff shows “that he was
arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech
had not been.” 139 S. Ct. 1715, 1727 (2019).
The circuits admittedly disagree on whether only
specific examples of non-arrests, Pet. App. 28-29 (5th
Cir. 2022), or any “objective proof of retaliatory treatment” can satisfy this standard, Lund v. City of Rockford, 956 F.3d 938, 945 (7th Cir. 2020); see also Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022).
Here, a 72-year-old councilwoman organized a petition criticizing a city manager, and unwittingly
placed it in her binder during a council meeting. Two
months later, respondents—the city manager’s allies—engineered her arrest for tampering with a government record. That charge has no precedent involving similar conduct, was supported by an affidavit
based on the councilwoman’s viewpoints, and skirted
ordinary procedures to ensure her jailing. The councilwoman sued respondents but no arresting officer.
The questions presented are:
1. Whether the Nieves probable cause exception
can be satisfied by objective evidence other than specific examples of arrests that never happened.
2. Whether the Nieves probable cause rule is limited to individual claims against arresting officers for
split-second arrests.
ii
PARTIES TO THE PROCEEDING
Petitioner Sylvia Gonzalez was the plaintiff in the
district court and appellee in the Fifth Circuit.
Respondents Edward Trevino; John Siemens; and
Alexander Wright were individual defendants in the
district court and the appellants in the Fifth Circuit.
Defendant City of Castle Hills was a city defendant in the district court and is not a party to respondents’ interlocutory appeal.
iii
RELATED PROCEEDINGS
This case arises from the following proceedings:
•
Gonzalez v. Trevino, et al., No. 21-50276,
5th Cir. (February 22, 2023) (denying
rehearing en banc);
•
Gonzalez v. Trevino, et al., No. 21-50276,
5th Cir. (July 29, 2022) (reversing denial of
individual defendants’ motion to dismiss);
and
•
Gonzalez v. City of Castle Hills, Texas, et al.,
No. 5:20-CV-1151, W.D. Tex. (March 12,
2021) (denying individual and city defendants’ motion to dismiss).
Defendant City of Castle Hills could not appeal the
denial of the motion to dismiss due to the interlocutory nature of the proceedings.
There are no other proceedings in state or federal
trial or appellate courts, or in this Court, related to
this case under Supreme Court Rule 14.1(b)(iii).
iv
TABLE OF CONTENTS
Page
Petition for a Writ of Certiorari................................. 1
Opinions Below .......................................................... 4
Jurisdiction................................................................. 5
Constitutional and Statutory Provisions
Involved ...................................................................... 5
Statement ................................................................... 5
Reasons for Granting the Petition........................... 15
I.
The circuits are split on the scope of the
Nieves probable cause exception. .................. 15
A. The Ninth and Seventh Circuits
permit any objective evidence of
disparate treatment for purposes of
the Nieves exception. ................................ 18
B. The Fifth Circuit permits only
specific examples of non-arrests. ............. 23
II. Some circuit judges question the
applicability of Nieves outside of splitsecond decisions to arrest.............................. 25
III. The
questions
presented
are
exceptionally important and squarely
presented. ...................................................... 32
Conclusion ................................................................ 37
v
TABLE OF APPENDICES
Page
APPENDIX A: Order and Dissenting Opinion
of the Fifth Circuit (February
22, 2023) ....................................... 1a
APPENDIX B: Order, Majority Opinion, and
Dissenting Opinion of the
Fifth Circuit (July 29, 2022) ...... 20a
APPENDIX C: Order of the United States
District Court for the Western
District of Texas (March 12,
2021) ........................................... 65a
APPENDIX D: Complaint for Retrospective
Relief with Exhibits A–D
(September 29, 2020) ................. 98a
vi
TABLE OF AUTHORITIES
Page
CASES
Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) .............................................. 22
Ballentine v. Las Vegas Metro. Police Dep’t,
480 F. Supp. 3d 1110 (D. Nev. 2020) ................... 19
Ballentine v. Tucker,
28 F.4th 54 (9th Cir. 2022) .......................... 1, 19-21
Galarnyk v. Fraser,
687 F.3d 1070 (8th Cir. 2012) .............................. 35
Hartman v. Moore,
547 U.S. 250 (2006) .............................................. 16
Lozman v. City of Riviera Beach,
138 S. Ct. 1945 (2018) ... 13-14, 25-28, 30-31, 34, 36
Lund v. City of Rockford,
956 F.3d 938 (7th Cir. 2020) ................. 1, 12, 19-21
Lyberger v. Snider,
42 F.4th 807 (7th Cir. 2022) ............................. 1, 21
Nieves v. Bartlett,
139 S. Ct. 1715 (2019) ..............................................
........................... 1-4, 11-18, 20-26, 29-31, 33-34, 36
Novak v. City of Parma,
932 F.3d 421 (6th Cir. 2019) ............ 4, 26-27, 29-30
vii
Novak v. City of Parma,
33 F.4th 296 (6th Cir. 2022) ............................. 4, 35
Novak v. City of Parma,
143 S. Ct. 773 (2023) ........................................ 4, 35
United States v. Reese,
92 U.S. 214 (1876) ................................................ 32
Villarreal v. City of Laredo,
44 F.4th 363 (5th Cir. 2022) ................................. 34
CODES AND STATUTES
28 U.S.C. 1254 ............................................................ 5
Minn. Stat. § 609.605 ............................................... 35
Ohio Rev. Code § 2909.04 ........................................ 34
Tex. Agr. Code § 93.061 ........................................... 33
Tex. Agr. Code § 93.062 ........................................... 33
Tex. Gov’t Code § 3101.010 ...................................... 33
Tex. Local Gov’t Code Ann. 21.031 ........................ 7, 9
Tex. Parks & Wild. Code § 66.023 ........................... 33
Tex. Penal Code § 37.10 ................................... 5, 8, 35
Tex. Penal Code § 39.06 ........................................... 33
OTHER AUTHORITIES
Black’s Law Dictionary (11th ed. 2019) .................. 18
viii
Harvey A. Silvergate,
Three Felonies a Day: How the Feds Target
the Innocent (2011) ............................................... 32
Right on Crime,
Overcriminalization, https://rightoncri
me.com/initiatives/overcriminalization/ .............. 32
1
PETITION FOR A WRIT OF CERTIORARI
Nieves v. Bartlett, which governs First Amendment claims for retaliatory arrests, was decided by
this Court only four terms ago. Yet the circuits are already in an admitted split over the reach of one of its
most important holdings: that probable cause does
not bar First Amendment claims against police officers when a plaintiff “presents objective evidence that
he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected
speech had not been.” 139 S. Ct. 1715, 1727 (2019).
The Seventh and Ninth Circuits have interpreted
this rule to allow plaintiffs flexibility in the types of
“objective evidence” that can make that showing. Unlike the Fifth Circuit, they do not limit plaintiffs to a
narrow category of evidence consisting only of specific
cases of non-arrests where people committed the
same violation but did not engage in protected speech.
Lund v. City of Rockford, 956 F.3d 938, 945 (7th Cir.
2020); see also Ballentine v. Tucker, 28 F.4th 54, 60
(9th Cir. 2022). Rather, a plaintiff can prevail by
pointing to “statements from arresting officers or
other police officials” and “a wide range of other objective evidence of retaliation.” Lyberger v. Snider, 42
F.4th 807, 813-814 (7th Cir. 2022) (cleaned up).
While recognizing that at least “one of [its] sister
circuits has taken a broader view of the Nieves exception,” 1 the court below held that a specific example of
1 Courts refer to the similarly-situated rule in Nieves as “the
Nieves exception” or “the jaywalking exception,” as will Gonzalez
in this petition. The general rule that probable cause defeats retaliatory arrest claims will be referred to as “the Nieves rule.”
2
non-arrests “is required to invoke [it].” Pet. App. 29a.
As a result, the court “d[id] not adopt [the other circuits’] more lax reading of the exception,” ibid., and
denied petitioner Sylvia Gonzalez her claim for retaliatory arrest, over dissents by Judge Andrew Oldham,
id. at 3a, and later Judge James Ho, id. at 34a.
By breaking with the Seventh and Ninth Circuits,
the court below blinded itself to clear and objective evidence of retaliatory motive presented by Gonzalez in
her complaint. For example, Gonzalez was arrested
for the routine and common mistake of misplacing a
document—a petition she organized—by inadvertently putting it in her binder. But in the last ten
years, the statute used for her arrest was never once
used to jail someone engaged in a remotely similar
conduct. Gonzalez’s arrest was also inconsistent with
the regular practice in Bexar County, where jails are
overcrowded and nonviolent misdemeanants with no
criminal records are processed without being jailed.
Finally, the arrest affidavit listed Gonzalez’s viewpoints as relevant facts warranting her arrest.
The court below acknowledged that Gonzalez’s
complaint revealed “that virtually everyone prosecuted under [the relevant statute] was prosecuted for
conduct different from hers.” Id. at 29a. But it held
that because “the plain language of Nieves requires
comparative evidence” of non-arrests, Gonzalez’s failure to point to records of people who misplaced government papers without criticizing the government
and were not arrested for it meant that she did not
satisfy the Nieves exception. Ibid.
3
Tellingly the court stated that “[w]ere we writing
on a blank slate, we may well agree with” Judge Oldham’s dissenting view of the exception, especially because “Gonzalez’s arrest was allegedly in response to
her exercise of her right to petition.” Id. at 33a. But
the majority felt bound by “the better reading of the
relevant Supreme Court precedent.” Ibid.
While Judge Oldham would have held that Gonzalez presented enough objective evidence to satisfy the
Nieves exception, his broader point is that the Nieves
rule, which was designed for “split-second warrantless arrests,” should not apply in the first place:
“Nieves designed a rule to reflect ‘the fact that protected speech [or conduct] is often a legitimate consideration when deciding whether to make an arrest’ and
the fact that ‘it is particularly difficult to determine
whether the adverse government action was caused
by the officer’s malice or the plaintiff’s potentially
criminal conduct.’” Id. at 54a-55a (Oldham, J., dissenting) (citation omitted). “In this case, it’s plainly
impossible that [Gonzalez’s] speech and petitioning
activity were ‘a legitimate consideration’ in the [respondents’] efforts to jail her.” Id. at 55a. And “there’s
zero difficulty or complexity in figuring out whether it
was animus or her purportedly criminal conduct that
caused her arrest.” Ibid. A rule governing warrantless
arrests should not apply to “deliberative, premeditated, weeks-long” conduct. Id. at 54a.
The Sixth Circuit has also articulated a similar
point of view, stating in 2019 that “based on the Supreme Court’s reasoning” in Nieves, “the general rule
of requiring plaintiffs to prove the absence of probable
cause should not apply” when no “thorny causation
4
issue[s]” are present. Novak v. City of Parma, 932
F.3d 421, 431-432 (6th Cir. 2019) (Thapar, J., writing
for the unanimous panel). 2
Only this court can resolve the disagreement between the circuits. At bottom, the question is whether
Nieves designed a rule that requires courts to blind
themselves to clear evidence of retaliatory motive as
long as probable cause is present to arrest, even for
the most mundane of offenses. If it is true, then America’s “exuberantly” growing criminal laws can be used
“not for their intended purposes but to silence those
who voice unpopular ideas” and “little [is] left” of the
fundamental right “to speak without risking arrest.”
Nieves, 139 S. Ct. at 1730 (Gorsuch, J., concurring in
part and dissenting in part); see also Pet. App. 3a-4a
(Ho, J., dissenting from denial of rehearing en banc).
The Court should grant this petition and reverse.
OPINIONS BELOW
The original opinion of the court of appeals and the
dissenting opinion are reported and available at 42
F.4th 487. Pet. App. 20a-64a. The denial of rehearing
en banc and the dissenting opinion are reported and
available at 60 F.4th 906. Pet. App. 1a-19a. The opinion of the United States District Court for the Western District of Texas denying respondents’ motion to
dismiss is unreported but available at 2021 WL
4046758. Pet. App. 65a-97a.
2 This decision preceded Novak v. City of Parma, 33 F.4th
296 (6th Cir. 2022), cert. denied 143 S. Ct. 773 (2023), which was
decided on separate grounds.
5
JURISDICTION
The original opinion of the court of appeals was
filed on July 29, 2022. Pet. App. 20a. On February 22,
2023, the court, in a ten-to-six vote, denied rehearing
en banc. Pet. App. 1a. This Court has jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitution prohibits any law “abridging the freedom of
speech, or of the press;” or the right of the people to
petition the Government for a redress of grievances.”
*
*
*
Section 37.10(a)(3) of the Texas Penal Code provides: “A person commits an offense if the person intentionally destroys, conceals, removes, or otherwise
impairs the verity, legibility, or availability of a government record.”
STATEMENT
A. Factual background
Four years ago, petitioner Sylvia Gonzalez, a 72year-old retiree from Castle Hills, Texas, ran for city
council to give back to her community. Id. at 102a.
Gonzalez’s opponent was a well-connected incumbent,
allied with the town’s city manager. Id. at 104a-105a.
To the surprise of many, including herself, Gonzalez
won, becoming the first Hispanic woman to be elected
to the Castle Hills city council. Id. at 106a.
6
One big part of Gonzalez’s success was the promise
she made to organize a petition to unseat the city
manager who was deeply unpopular due to his bareknuckle tactics and city corruption. Id. at 105a. Having to deal with this petition was an undesirable task
for respondents, the city manager’s allies. They
helped him run the city by steering city policy and resources away from resident services and toward enriching city employees. Ibid.; id. at 107a-108a.
On day one of Gonzalez’s tenure, she got to work.
Id. at 106a. Along with her fellow residents, Gonzalez
canvassed neighborhoods collecting hundreds of signatures in support of a petition to “FIX OUR
STREETS” by reinstating a previous city manager.
Id. at 107a; 136a. At Gonzalez’s first council meeting
as an elected member, a resident submitted the petition to the mayor (respondent Trevino). Ibid.
The council meeting grew contentious during debate on the city manager’s job performance and was
extended to the next day. Id. at 108a. At the meeting’s
conclusion, Gonzalez, who sat next to the mayor at the
dais, picked up the papers strewn around her sitting
area and put them in her binder. Ibid.
Then, leaving her binder behind, Gonzalez went to
the other side of the room to talk to a constituent. Id.
at 108a-109a. A few minutes later, a police officer in
charge of safety at the meeting tapped Gonzalez on
her shoulder and explained that the mayor wanted to
talk to her. Id. at 109a. The police officer escorted
Gonzalez to the mayor who was still at his seat next
to Gonzalez’s. Ibid. The mayor then asked Gonzalez,
“Where’s the petition?” Gonzalez responded, “Don’t
7
you have it? It was turned in to you yesterday.” Id. at
110a. At the mayor’s prompting, Gonzalez looked for
the petition in her binder and to her surprise found it
there. Ibid. Gonzalez then handed the petition to the
mayor who volunteered to Gonzalez that she “probably picked it up by mistake.” Ibid.
To punish Gonzalez for organizing the petition
that criticized their ally, the city manager, respondents then engineered a plan to arrest her and remove
her from office. Id. at 111a-112a. The plan had three
parts, which included investigating Gonzalez for intentionally concealing the very petition she spearheaded; jailing Gonzalez based on this investigation;
and removing Gonzalez from office based on the arrest and subsequent conviction. Id. at 111a; see Tex.
Local Gov’t Code § 21.031 (if a councilmember is convicted of a misdemeanor involving official misconduct,
she is immediately removable from office).
Part 1: Investigation
The “investigation” of a briefly misplaced document lasted almost two months. Id. at 112a, 118a. At
first, it was a rank-and-file police officer who was
tasked by the mayor and police chief (respondent Siemens) to investigate Gonzalez. Id. at 113a. Three
weeks into the unfruitful investigation, the police
chief deputized an attorney and his friend (respondent Wright) to take over as a “special detective.” Ibid.
After a month of additional work, the special detective filed an arrest affidavit asserting that Gonzalez committed a Class A misdemeanor by “intentionally destroy[ing], conceal[ing], remov[ing], or
8
otherwise impair[ing] the verity, legibility, or availability of a government record.” Id. at 118a; Tex. Penal
Code § 37.10(a)(3). Despite speech being completely
irrelevant to the elements of the criminal offense, the
affidavit listed Gonzalez’s viewpoints to justify her arrest, including that:
•
“From her very first meeting in May of 2019,
[Gonzalez] * * * has been openly antagonistic to
the city manager, Ryan Rapelye, wanting desperately to get him fired”;
•
“Part of her plan to oust [the city manager] involved collecting signatures on several petitions to that effect”;
•
“Gonzalez had personally gone to [a resident’s]
house on May 13, 2019 to get her signature on
one of the petitions under false pretenses, by
misleading her, and by telling her several fabrications regarding [the city manager].”
Id. at 116a, 158a-163a.
Part 2: Arrest and Jailing
To secure Gonzalez’s arrest and ensure she spent
time in jail, the special detective performed three unusual maneuvers. First, instead of obtaining a summons—a standard procedure for nonviolent misdemeanors, especially those involving elected officials—
he chose to obtain a warrant. Id. at 114a. Second, instead of involving the district attorney, he walked this
warrant directly to a judge—again, a procedure reserved for emergencies or violent felonies. Id. at 114a115a. Third, because he walked the warrant to a
9
judge, the warrant wasn’t in the satellite booking system, so Gonzalez could not be booked, processed, and
released without jailtime. Id. at 115a.
Gonzalez’s booking photo, which
appeared on local news
Gonzalez turned herself in as soon as she learned
about the warrant Id. at 118a. Thanks to respondents’
maneuvering, she spent a day in jail, handcuffed, on
a cold metal bench, wearing an orange jail shirt, and
avoiding the restroom, which had no doors. Ibid.
Part 3: Removal from Office
Because the district attorney dropped the charges
as soon as he learned about them, id. at 115a, Gonzalez was not convicted of the misdemeanor and as a result was not “immediate[ly] remov[ed] from office,”
Tex. Local Gov’t Code § 21.031, as respondents had
10
planned. They still succeeded in their goal. Gonzalez
was so hurt by the experience and so embarrassed by
the media coverage of her arrest, that she gave up her
council seat and swore off organizing petitions or criticizing her government. Id. at 123a-124a.
B. Procedural history
1. Gonzalez sued respondents in the U.S. District
Court for the Western District of Texas. She asserted
two counts of retaliation, alleging that respondents
and the City of Castle Hills violated her right to petition the government and criticize it. Id. at 126a, 129a.
In her complaint, Gonzalez alleged that a review
of the felony and misdemeanor data from Bexar
County over the past decade made it clear that the
tampering statute had never been used to charge
someone for a common and uneventful offense of putting a piece of paper in the wrong pile. Id. at 117a.
Out of 215 grand jury felony indictments obtained under the tampering statute, not one had an allegation
even remotely resembling the one mounted against
Gonzalez. Ibid. By far the largest portion of the indictments involved accusations of either using or making
fake government identification documents: altered
driver’s licenses, another person’s ID, temporary
identification cards, public safety permits, green
cards, or social security numbers. Ibid. A few others
concerned the misuse of financial information, like
the writing of fake checks or stealing of banking information. Ibid. The outlier examples included hiding
evidence of murder, cheating on a government-issued
exam, and using a fake certificate of title. Ibid. Gonzalez further alleged that the misdemeanor data was
11
even less notable. Ibid. In each reviewed case, the alleged tampering involved the use of fake social security numbers, driver’s licenses, and green cards. Ibid.
Respondents and the city filed a motion to dismiss
for failure to state a claim. Id. at 65a. The district
court denied the motion on both counts. With regard
to respondents, the court held that “the Nieves exception applies * * * and Plaintiff need not plead or prove
the absence of probable cause.” Id. at 80a. Gonzalez
sufficiently alleged “the existence of objective evidence” showing that over the last ten years no one in
Bexar County was charged under the tampering statute for conduct remotely like hers. Id. at 81a.
With regard to the city, the district court held that
Gonzalez adequately pled that the city council, as a
final policy maker, engaged in a persistent and widespread practice that was the moving force behind the
denial of the constitutional rights. Id. at 90a-96a.
Because the motion to dismiss was in a qualified
immunity posture, respondents filed an interlocutory
appeal. Id. at 20a. The claim against the city was
stayed pending the resolution of this petition.
2. The Fifth Circuit, over a dissent by Judge Oldham, reversed the district court’s judgment, holding
that Nieves’s probable cause rule barred Gonzalez’s
retaliation claim. Id. at 21a.
The panel majority determined that Gonzalez
failed to present sufficient objective evidence to satisfy the jaywalking exception. In its view, “Nieves requires comparative evidence, because it required ‘objective evidence’ of ‘otherwise similarly situated
12
individuals’ who engaged in the ‘same’ criminal conduct but were not arrested.” Pet. App. 29a (quoting
Nieves, 139 S. Ct. at 1727). Since Gonzalez did not
point to a specific individual who both misplaced a
document without engaging in protected speech and
was not arrested under the statute, “[t]he evidence
Gonzalez provides here comes up short.” Ibid. In other
words, Gonzalez’s reliance on a decade-worth of
charges under the same statute, respondents’ explicit
reference to Gonzalez’s protected activity in the arrest
affidavit, and a drastic departure from regular procedures in Bexar County for jailing people was not
enough. Gonzalez was obligated to point to a specific
individual who also misplaced papers at a government meeting, but without criticizing the government, and was not arrested for it.
By ruling against Gonzalez, the Fifth Circuit admitted that it split from its sister courts: “We recognize that one of our sister circuits has taken a broader
view of the Nieves exception” that doesn’t require “‘a
particular form of comparison-based evidence.’” Ibid.
(quoting Lund, 956 F.3d at 945). “We do not adopt this
more lax reading of the exception.” Ibid.
The panel admitted that “[w]ere we writing on a
blank slate, we may well agree with our distinguished
colleague,” Judge Oldham, and recognize Gonzalez’s
claim. Ibid. Nonetheless, “we remain bound by what
we consider the better reading of the relevant Supreme Court precedent.” Ibid.
3. Judge Oldham disagreed with the panel majority. In his view, Gonzalez met her burden of supplying
objective evidence to show differential treatment under Nieves. “First, [Gonzalez]’s evidence is obviously
13
objective. She did a comprehensive ‘review of misdemeanor and felony data from Bexar County * * * [a]nd
she doesn’t rely on ‘statements and motivations of the
particular [officials].’” Id. at 59a (Oldham, J., dissenting). And “[s]econd, [Gonzalez]’s evidence supports
the proposition that Nieves requires.” Ibid. “Evidence
that an arrest has never happened before (i.e., a negative assertion) can support the proposition that there
are instances where similarly situated individuals not
engaged in the same protected activity hadn’t been arrested (i.e., a positive inference).” Ibid.
In addition, Judge Oldham expressed skepticism
that the Nieves rule should even apply to situations
outside of warrantless, on-the-spot arrests. Ibid.
“Nieves designed a rule to reflect” two realities that
complicate the job of arresting officers when they
make warrantless arrests: 1. “that protected speech
[or conduct] is often a legitimate consideration when
deciding whether to make an arrest” and 2. “that ‘it is
particularly difficult to determine whether the adverse government action was caused by the officer’s
malice or the plaintiff’s potentially criminal conduct.’”
Id. at 55a (citing Nieves, 139 S. Ct. at 1724). But “it’s
plainly impossible that [Gonzalez]’s speech and petitioning activity was a ‘legitimate consideration’” in respondents’ efforts to arrest her. Ibid. “And there’s zero
difficulty or complexity in figuring out whether it was
animus or [Gonzalez’s] purportedly criminal conduct
that” caused respondents to engineer her arrest. Ibid.
“[T]he more relevant rule,” in Judge Oldham’s
view, “appears to come from Lozman,” which involved
“materially identical facts.” Ibid. (citing Lozman v.
City of Riviera Beach, 138 S. Ct. 1945 (2018)). First,
14
Gonzalez “didn’t sue an officer who made the arrest.”
Id. at 57a. Second, she was a victim of “‘a premeditated plan’ to retaliate against [her] for engaging in
protected activity.” Ibid. Third, “the protected activity
wasn’t a legitimate consideration for the arrest.” Ibid.
And fourth, “the right violated here is * * * the right
to petition,” ibid., which this Court said was “one of
the most precious of the liberties safeguarded by the
Bill of Rights.” Lozman, 138 S. Ct. at 1954.
In response, the majority dismissed the distinction
between split-second arrests and premeditated plans
to arrest: “the Supreme Court allowed Lozman’s
claims to proceed not because of the unusual facts of
the case, but because he was asserting a Monell claim
against the municipality.” Pet. App. 31a.
4. The Fifth Circuit denied rehearing en banc in a
ten-to-six vote, with Judges Smith, Higginson, Ho,
Duncan, Oldham, and Douglas voting in favor. Id. at
2a. Judge Ho wrote a dissent from the denial for many
of the same reasons advanced in Judge Oldham’s
panel dissent.
According to Judge Ho, “The First Amendment is
supposed to stop public officials from punishing citizens for expressing unpopular views.” Id. at 3a (Ho,
J., dissenting from denial of rehearing en banc). But
officials are “often able to invent some reason to justify their actions,” which requires courts to “be vigilant in preventing officers from concocting legal theories to arrest citizens for stating unpopular” views. Id.
at 4a. Thus, “probable cause [must] pose no impenetrable barrier to a retaliation claim.” Id. at 9a.
15
Judge Ho would have held that by presenting evidence in her complaint that “no one has ever been arrested for doing what she did,” Gonzalez met her burden to show “that [respondents] decided to arrest her,
even though they usually exercise their discretion not
to make such arrests.” Id. at 10a-11a. According to
Ho, “that’s all that Nieves requires.” Id. at 11a. It
“makes little sense to read Nieves to require comparative evidence” of non-arrests. Id. at 12a. Nieves’s own
example for the exception—jaywalking—leaves plaintiffs with no choice but to “appeal to the commonsense
proposition that jaywalking happens all the time, and
jaywalking arrests happen virtually never (or ever).”
Ibid. (citing id. at 53a (Oldham, J., dissenting)).
REASONS FOR GRANTING THE PETITION
In the last two years, three circuit courts reached
an admitted split over the interpretation of the Nieves
probable cause exception. Some circuit court judges,
including Judge Oldham below and a unanimous
Sixth Circuit panel, question whether Nieves even applies in situations where probable cause is irrelevant
to assessing the objective reasonableness of an arrest.
Only this Court can resolve the conflict. It should
grant review and reverse.
I.
The circuits are split on the scope of the
Nieves probable cause exception.
1. Nieves is this Court’s most recent statement on
“whether probable cause to make an arrest defeats a
claim that the arrest was in retaliation for speech protected by the First Amendment.” 139 S. Ct. at 1721.
It was made in the context of split-second warrantless
16
arrests, which pose “special challenges to law enforcement”—two police officers arrested a man during an
Arctic Man festival after he told festival attendees to
not cooperate with them. Id. at 1720.
According to Nieves, “[t]he presence of probable
cause should generally defeat a First Amendment retaliatory arrest claim” except in “circumstances
where officers have probable cause to make arrests,
but typically exercise their discretion not to do so.” Id.
at 1726–1727. The former part of the rule comes from
Hartman v. Moore, 547 U.S. 250, 261, 265 (2006)—the
Court’s earlier decision on retaliatory prosecutions,
where the Court held that because proving the link
between the police officer’s retaliatory animus and
the plaintiff’s injury of being prosecuted is generally
complex, “plaintiffs must * * * prove as a threshold
matter that the decision to press charges was objectively unreasonable because it was not supported by
probable cause.” Nieves, 139 S. Ct. at 1723. The latter
part of the rule is what’s commonly referred to as the
jaywalking exception. It addresses the “‘risk that
some police officers may exploit the arrest power as a
means of suppressing speech’” and waives the probable cause requirement when “probable cause does little to prove or disprove the causal connection between
animus and injury.” Id. at 1727.
Thus in Nieves, the Court did not adopt Hartman’s
“unyielding requirement to show the absence of probable cause,” lest “Hartman’s rule would come at the
expense of Hartman’s logic.” Ibid.
A prototypical example of the jaywalking exception is jaywalking itself. It happens all the time, but
17
rarely results in arrests. “If an individual who has
been vocally complaining about police conduct is arrested for jaywalking,” it is not at all clear that probable cause and not animus was the reason for the arrest. Ibid. Dismissing a claim like that “would seem
insufficiently protective of First Amendment rights.”
Ibid. As a result, if a plaintiff “presents objective evidence that she was arrested when otherwise similarly
situated individuals not engaged in the same sort of
protected speech had not been,” that will “address[]
Hartman’s causal concern by helping establish that
non-retaliatory grounds were in fact insufficient to
provoke the adverse consequences.” Ibid. (cleaned up)
(emphasis added). Provided the plaintiff makes that
objective showing, she can maintain her retaliation
claim despite the existence of probable cause. Ibid.
2. The Court described what constitutes objective
evidence from the perspective of what it is not, rather
than what it is. It is not “a purely subjective standard,” id. at 1727, and does not permit allegations of
“the personal motives of individual officers,” “the subjective state of mind of the officer,” or “the subjective
intent motivating the relevant officials.” Id. at 1725.
So statements like “bet you wish you would have
talked to me now,” which officer Nieves made when
arresting Bartlett, are not sufficient to overcome the
existence of probable cause. Id. at 1721, 1724.
The Court also cited United States v. Armstrong to
provide examples of the types of objective evidence
that would be sufficient. Id. at 1727. Comparative evidence identifying particular individuals who had engaged in the same acts, but not the same speech, and
yet were not arrested would certainly be sufficient.
18
But that doesn’t mean that data not based on these
types of comparators wouldn’t. For example, a negative assertion that an arrest hasn’t happened before
for that type of conduct can support the proposition
that there are instances where similarly situated individuals not engaged in the same protected activity
hadn’t been arrested. See Evidence, Black’s Law Dictionary (11th ed. 2019) (explaining that “a negative
assertion will sometimes be considered positive evidence”). Armstrong too “expressly left open the possibility that other kinds of evidence, such as admissions, might be enough to allow a claim to proceed.”
Nieves, 139 S. Ct. at 1734 (Gorsuch, J., concurring in
part and dissenting in part).
Despite the Court announcing the jaywalking exception just four terms ago, the circuits already disagree on its scope, with the Fifth Circuit departing
from the Seventh and Ninth on whether only particular comparative evidence of non-arrests could overcome the existence of probable cause.
A. The Ninth and Seventh Circuits permit
any objective evidence of disparate
treatment for purposes of the Nieves
exception.
1. In the Ninth and Seventh Circuits, First
Amendment plaintiffs are not limited in the type of
objective evidence they can marshal to overcome the
existence of probable cause. In other words, courts in
these jurisdictions don’t have to blind themselves to
evidence of retaliatory motive simply because the evidence of non-arrests is unavailable. Instead, they
look to “whether the facts supply objective proof of
19
retaliatory treatment,” declining to “predict in advance every factual scenario which might meet the
[Supreme] Court’s ‘objective evidence’ standard.”
Lund, 956 F.3d at 945.
In Ballentine v. Tucker, the Ninth Circuit allowed
a retaliation claim against police officers where plaintiffs failed to point to a specific example of someone
who didn’t criticize the police, did violate the statute,
and didn’t get arrested for it. The case involved activists chalking anti-police messages on Las Vegas sidewalks. Ballentine, 28 F.4th at 60. They were arrested
under Nevada’s graffiti statute. Ibid. In discovery,
government records showed that there were “only two
instances in which chalkers were suspected of or
charged with violating [the] statute,” neither one resulting in arrest. Id. at 62. These two instances, however, involved the very same plaintiffs, who were not
arrested earlier despite engaging in the exact same
chalking activity criticizing the police. Ballentine v.
Las Vegas Metropolitan Police Dep’t, 480 F. Supp. 3d
1110, 1116 (D. Nev. 2020). In addition, police could
point to no example of the police department ever arresting anyone besides the plaintiffs for chalking on
the sidewalk. Ballentine, 28 F.4th at 62. In other
words, no evidence presented by the plaintiffs could
point to instances of people 1. chalking on sidewalks;
2. not criticizing police; and 3. not being arrested under the graffiti statute. Nonetheless, the Ninth Circuit still held that the evidence plaintiffs provided
was “the kind of ‘objective evidence’ required by the
20
Nieves exception,” and recognized their retaliatory arrest claim despite probable cause. Ibid. 3
In Lund v. City of Rockford, the Seventh Circuit
also rejected defendants’ attempts to cabin the Nieves
exception to only evidence of non-arrests. Plaintiff—a
local reporter—argued that his arrest for driving a
motorized bike “the wrong way down a one-way street
was, in fact, retaliation for his protected First Amendment journalistic activity.” Lund, 956 F.3d at 945. To
overcome probable cause, the reporter presented
“what he [mischaracterized] as an ‘admission’” by arresting officers that they arrested him based on his
newsgathering activities and a statement he made
earlier during their encounter. Ibid. The court held
that probable cause barred the reporter’s claim. In the
process, the court announced a broad reading of the
Nieves exception. Had the plaintiff “made [an] attempt to present objective evidence showing that the
police rarely make arrests for driving the wrong way
on a one-way street, or that other similarly situated
persons were not arrested,” he would have satisfied
the standard. Id. at 945-946. Similarly, had the plaintiff “demonstrated retaliation in some other way,” he
could have still overcome having to make the threshold showing of no probable cause. Id. at 945. Per Armstrong, the court would have even been satisfied with
the officers’ admission of retaliatory intent, had it
been an actual admission and not the reporter’s misrepresentation of it. Ibid. The Seventh Circuit has
3 Ballentine is also interesting because the data was only col-
lected in discovery. This speaks in favor of allowing “discovery
into potential comparator evidence where a complaint raises a
strong inference of unconstitutional motive.” Nieves, 139 S. Ct.
at 1741 n.8 (Sotomayor, J., dissenting).
21
since confirmed its reading of the Nieves exception: “a
plaintiff might prevail by pointing to similarly-situated comparators, statements from arresting officers
or other police officials, or a wide range of other objective evidence of retaliation.” Lyberger, 42 F.4th at
813-814 (cleaned up).
2. By “surmis[ing] that Justices Gorsuch and Justice Sotomayor are correct,” the Seventh Circuit, like
the Ninth, adopted a “commonsensical[]” approach to
the Nieves “standard.” Lund, 956 F.3d at 945. This approach includes relying “on common experience to assess the most self-evidently minor infractions,” such
as jaywalking, or, here, putting papers in the wrong
pile during a meeting. Nieves, 139 S. Ct. at 1741 n.8
(Sotomayor, J., dissenting). In addition, courts can
“permit plaintiffs to draw from a broad universe of potential comparators,” allow limited discovery, and
consider “objectively probative statements describing
events in the world” as opposed to “the officer’s internal thought processes.” Id. at 1741 n.7, n.8.
Importantly, courts can allow “rough comparisons
or inexact statistical evidence where laboratory-like
controls cannot realistically be expected.” Id. at 1741
n.8. For example, in the case below, as in Ballentine,
evidence that a statute has never before been used to
punish a similar conduct could support a proposition
that people misplaced papers before, or chalked on a
sidewalk before, but were not arrested for it.
3. Had the Ninth and Seventh Circuits’ “commonsensical[]” interpretation of the Nieves exception
been applied to the facts below, probable cause would
not have barred Gonzalez’s retaliatory arrest claim.
22
In her complaint, Gonzalez alleged sufficient objective
evidence to satisfy this standard, including:
•
A ten-year data analysis of the charges filed
under the tampering statute;
•
Respondents admitting in the arrest affidavit that Gonzalez’s speech informed the decision to charge her, even though speech is
irrelevant to the elements of the criminal offense; and
•
A list of three actions taken by respondents
that departed from normal county procedures and ensured that an elderly person
with no criminal record would be arrested
and jailed for a nonviolent misdemeanor. 4
See Statement, supra, at 8-11.
4 The extent of departures from normal procedures here is
glaring. It helps to show that while the respondents’ actions were
technically authorized by law, they were clearly motivated by
malice. As this Court held in Arlington Heights v. Metropolitan
Housing Development Corporation, “[d]epartures from the normal procedural sequence * * * might afford evidence that improper purposes are playing a role.” 429 U.S. 252, 267 (1977). It
is simply “commonsens[e]” for courts to consider this evidence
when untangling probable cause from improper motive. Nieves,
139 S. Ct. at 1734 (Gorsuch, J. concurring in part and dissenting
in part). Such evidence, unlike state of mind allegations, is not
easy to come by and is extremely probative. Yet the Fifth Circuit
ignored it. The Seventh and Ninth Circuit would not.
23
B. The Fifth Circuit permits only specific
examples of non-arrests.
1. In the Fifth Circuit, however, Gonzalez’s objective evidence was not sufficient to show disparate
treatment. That’s because in the Fifth Circuit, probable cause bars retaliatory arrest claims unless a plaintiff can produce comparison-based evidence of specific
individuals who engaged in the same conduct but not
in the same speech and were not arrested. Since Gonzalez did not “offer evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted” under the tampering
statute, no other objective evidence she presented, no
matter how overwhelming, satisfied its “better reading” of the Nieves exception. Pet. App. 28a-29a, 34a.
2. The problem with this “better reading” of the
exception is that courts are blinded to other objective
evidence of retaliatory intent, even if it helps to isolate the improper motive. And that’s Nieves’s rule
coming at the expense of Nieves’s logic.
Nieves’s probable cause requirement for retaliatory arrest claims was born out of necessity. In situations where arresting officers make an on-the-spot decision to arrest and the arrestee also happens to be a
speaker, it’s usually impossible to tell whether it was
the officer’s malice or a wholly legitimate consideration of speech that drove the decision. Nieves, 139 S.
Ct. at 1727. Officer Nieves made an arrest “based on
a combination of the content and tone of [Bartlett’s]
speech,” for example. Id. at 1724. But it was far from
clear that he did so because he didn’t appreciate
24
Bartlett’s criticism rather than because the content of
Bartlett’s speech was part of his disorderly conduct.
The logic of Nieves, therefore, is that in cases involving thorny causation issues, police officers cannot
be put in a position where subjective state of mind allegations—which are “easy to allege and hard to disprove”—would expose them to litigation. Id. at 1725
(cleaned up). In such cases, readily available evidence
of probable cause, which “speaks to the objective reasonableness of an arrest,” can serve as a threshold requirement to help sort out illegitimate claims. Id. at
1724. If there was probable cause to arrest the
speaker, chances are the speaker would have been arrested even if he didn’t speak. Id. at 1727. If there was
no probable cause to arrest the speaker, that’s
“weighty evidence” of speech and not actual crime motivating the arrest. Id. at 1724, 1727.
In cases without thorny causation issues, however,
probable cause need not serve as a blindfold.
That’s what the jaywalking exception is all about.
Just because a rabble-rousing jaywalker arrested for
complaining about police conduct cannot point to specific other jaywalkers who got a free pass, doesn’t
mean that courts must ignore evidence that jaywalking is common; that people normally don’t get arrested for it; and that the one jaywalker that police
officers chose to arrest happens to be a rabble-rouser.
Under the Fifth Circuit precedent, however, that’s exactly what they must do.
That’s “insufficiently protective of First Amendment rights.” Id. at 1727. Where “probable cause does
25
little to prove or disprove causal connection between
animus and injury,” courts mustn’t ignore other objective evidence, lest the probable cause requirement
“could pose a risk that some police officers may exploit
arrest power as means of suppressing speech.” Ibid.
II.
Some circuit judges question the applicability of Nieves outside of split-second decisions to arrest.
A distinct question presented by this case is
whether Nieves’s rule applies at all outside of splitsecond decisions to arrest. The Sixth Circuit and
Judge Oldham’s dissent think not because in cases
where arresting officers are not sued for an on-theground execution of warrantless arrests, there simply
aren’t the thorny causation issues that are the backbone of Nieves. In such cases, Lozman—where premeditation obviates causal concerns—seems to provide a better rule.
1. According to Nieves, there are two reasons why
probable cause is most useful in situations involving
split-second arrests. First, it is useful where protected
speech is a legitimate consideration for deciding
whether to make an arrest—for example, in Nieves, it
was legitimate for the officers to take into account
Bartlett’s loudly discouraging people from cooperating with the police in their decision to arrest him for
disorderly conduct. 139 S. Ct. at 1724; see also Pet.
App. 55a (Oldham, J., dissenting). Second, probable
cause is useful where “it is particularly difficult to determine whether the adverse government action was
caused by the officer’s malice or the plaintiff’s potentially criminal conduct.” Nieves, 139 S. Ct. at 1724; see
26
also Novak, 932 F.3d at 432. Again, in Nieves, as well
as other warrantless arrest cases, a short period of
time spent on deciding whether to arrest makes it impossible to collect enough evidence to determine
whether an improper consideration of protected
speech actually took place. Probable cause, on the
other hand, will be easily available to stand in for objective reasonableness. Nieves, 139 S. Ct. at 1724.
Where these two considerations are not present—
i.e., in any case that involves premeditated and deliberate decision-making—probable cause is not a useful
proxy for determining the legitimacy of an arrest.
Consider Lozman v. City of Riviera Beach, which
“involved materially identical facts” to the case below.
Pet. App. 55a (Oldham, J., dissenting). There, “an outspoken critic” of the city, who “often spoke during the
public-comment period at city council meetings,”
openly criticized the city, and even sued it, was arrested during a council meeting on a councilmember’s
orders. Lozman, 138 S. Ct. at 1949. The arrest happened as Lozman was giving his remarks, over a direction by councilmember Wade to stop talking. Ibid.
There was an earlier, closed-door meeting, where the
councilmember suggested, and others agreed, that
“the City use its resources to ‘intimidate’ Lozman and
others who had filed lawsuits against the City.” Ibid.
(quoting from the meeting’s transcript).
When Lozman sued for retaliation, he argued that
this was no ordinary split-second decision to arrest.
The city council “formed an official plan to intimidate
him,” and executed it by ordering the arrest. Ibid.
27
In Lozman, neither of the special considerations
inherent to warrantless arrests was present. First,
the “retaliation [was] for prior, protected speech bearing little relation” to the arresting offense of talking
without authorization at the council meeting. See id.
at 1954 (“[I]t is difficult to see why a city official could
have legitimately considered that Lozman had,
months earlier, criticized city officials or filed a lawsuit against the city.”). So there was no need for Lozman’s speech to be taken into account when deciding
whether to make the arrest. And second, there was
plenty of clear evidence of retaliatory motive, drowning out the existence of probable cause. For example,
there was a transcript from a closed-door councilmeeting, where council members “formed an official
plan to intimidate” Lozman for filing a lawsuit
against the city. Id. at 1949. In addition, there were
“a number of disputes with city officials and employees over the ensuing years, many of which Lozman
says were part of the City’s plan of retaliation.” Ibid.
Importantly, the arresting officer was not a defendant in Lozman’s suit. The officer acted in the moment, with no opportunity to do anything other than
execute the orders. The officer’s behavior, however, is
in stark contrast to that of councilmember Wade,
whose deliberate actions are categorically different.
2. The Sixth Circuit and the Fifth Circuit’s Judge
Oldham agree that when “probable cause does little
to disentangle retaliatory motives from legitimate
ones * * * the general rule of requiring plaintiffs to
prove the absence of probable cause should not apply.”
Novak, 932 F.3d at 432; see also Pet. App. 55a (Oldham, J., dissenting).
28
In the case below, Judge Oldham identified Lozman as supplying “the more relevant rule.” Pet. App.
55a (Oldham, J., dissenting). After all, there was
plenty of evidence—without even looking to the Bexar
County data—disentangling proper and improper motives, and because “[i]n this case, it’s plainly impossible that [Gonzalez]’s speech and petitioning activity
were a legitimate consideration in the [respondents]’
efforts to jail her.” Ibid. (cleaned up). In fact, all the
evidence points to malice and not crime being the reason for arrest:
•
The officer first assigned to investigate Gonzalez spent almost a month looking into the
allegations and “got nowhere,” id. at 37a;
•
Following that investigation, respondents
Trevino and Siemens engaged a friendly
“Special Detective” (respondent Wright)
who did “three special [and irregular]
things” to ensure that Gonzalez, who has no
criminal record, would be arrested for a
nonviolent misdemeanor, id. at 38a;
•
Once the district attorney learned about the
charges against Gonzalez, he promptly dismissed them, id. at 55a;
•
The affidavit for Gonzalez’s arrest listed her
viewpoints as relevant to her arrest, even
though Gonzalez’s “spearheading of the petition was irrelevant to the elements of the
criminal offense” of tampering with a government record, id. at 57a;
29
•
Gonzalez was arrested for supposedly trying to intentionally conceal the very petition
she organized, ibid;
•
Gonzalez, like Lozman, did not sue the officer who made the arrest, ibid.
This evidence, in Judge Oldham’s view, made Gonzalez’s claim different from anything discussed in
Nieves, since “the causation difficulties that might
arise in the mine run of arrests made by police officers” simply weren’t present. Ibid. (cleaned up).
3. Three years earlier, writing for a unanimous
panel in Novak v. City of Parma, Judge Thapar also
stated that where “probable cause does little to disentangle retaliatory motives from legitimate ones * * *
[i]t may be that, based on the Supreme Court’s reasoning in [the Nieves] case and others, the general
rule of requiring plaintiffs to prove the absence of
probable cause should not apply.” 932 F.3d at 432.
The case involved two officers who obtained a warrant
to arrest Anthony Novak for “unlawfully impair[ing]
the [police] department’s functions.” Id. at 425. Novak
alleged that the arrest was in retaliation for his mocking the Parma Police Department by styling a Facebook page to look like the department’s official Facebook page and posting messages like an announcement of a “Pedophile Reform event,” where pedophiles
would receive honorary police commissions. Id. at
424-426. While the Sixth Circuit remanded the case
after affirming the denial of qualified immunity, it
provided a list of “future issues” that it said were
“most interesting,” though they did not bear on the
30
outcome of the case, since the events at issue took
place before Nieves was decided. Id. at 430.
One of those future issues was whether “probable
cause alone may not protect the officers.” Ibid. After
all, “in Nieves and its predecessors, the Court based
its reasoning on the thorny causation issue that
comes up” when “the factfinder” can’t “disentangle
whether the officer arrested him” because of his protected speech or purportedly criminal conduct. Ibid.
In Novak, the presence of probable cause “gets us nowhere” because “absent Novak’s protected speech,
there would be no basis for probable cause.” Ibid.
(cleaned up). In addition, being blinded to anything
other than probable cause here would make “Novak’s
case [into] prime ground for” police officers “‘exploit[ing] the arrest power as a means of suppressing
speech.’” Ibid. (citing Lozman, 138 S. Ct. at 1953).
In Novak, as in this case, probable cause would
have offered no help in disentangling proper and improper motives for the arrest. In contrast, there was a
greater risk that the arrest power could have been
weaponized as means of punishing criticism. In these
types of cases, with claims that don’t fit the mold of
“the typical retaliatory arrest claim,” Lozman, 138 S.
Ct. at 1954, the purchase that Nieves has is at best
“unclear.” Pet. App. 55a (Oldham, J., dissenting).
4. Limiting Nieves to warrantless arrests is also
in line with the Court’s framing of the probable cause
issue. Nieves is concerned with shielding a busy, onthe-beat “[p]olice officer[],” 139 S. Ct. at 1725, who is
torn between his respect for the right to speak on the
one hand, and the need to enforce the laws on the
31
other. This officer must act fast, making decisions “in
circumstances that are tense, uncertain, and rapidly
evolving.” Ibid. (cleaned up). The last thing he needs
is being dragged through the courts simply because a
plaintiff made an allegation based on this officer’s
mental state. Ibid. Accepting these allegations without requiring some showing of the lack of objective
reasonableness “would pose overwhelming litigation
risks,” especially when “policing certain events like an
unruly protest.” Ibid. That’s when probable cause
comes to the rescue. It “speaks to the objective reasonableness of an arrest.” Id. at 1724. Since its presence
generally means that the arrest would have happened
even without speech, and “its absence will * * * generally provide weighty evidence that the officer’s animus caused the arrest,” it gets our officer out of a tight
spot and lets him get on with his job. Ibid.
This case is different. Instead of brave police officers making warrantless arrests in situations that are
dangerous and chaotic, it involves desk-bound bureaucrats scheming for months to find an excuse to
obtain a warrant and cause their critic to be jailed.
See Lozman, 138 S. Ct. at 1954. Nieves was not written to deal with such facts. The tool it supplied, therefore, is, at best, not very useful for handling premeditated and intentional conduct and, at worst, makes
the right to criticize the government into “a parchment promise.” Pet. App. 3a (Ho, J., dissenting from
denial of rehearing en banc). One way to ensure this
doesn’t happen is by having a robust enforcement of
the Nieves exception, in line with the Seventh and
Ninth Circuits’ approach. Another way is by holding,
in line with the Sixth Circuit’s dicta and with Judge
Oldham’s dissent, that Nieves does not apply in cases
32
with no time pressures and where the facts provide a
straightforward account of whether it was malice or
criminal conduct that caused the arrest.
III. The questions presented are exceptionally important and squarely presented.
1. One-hundred-and-forty-seven years ago this
Court anxiously observed that “[i]t would certainly be
dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to
the courts to step inside and say who could be rightfully detained, and who should be set at large.” United
States v. Reese, 92 U.S. 214, 221 (1876).
Today this anxiety is a reality. Thousands of federal and state laws criminalize every manner of activity. “[I]t is only a slight exaggeration to say that the
average busy practitioner in this country wakes up in
the morning, goes to work, comes home, takes care of
personal and family obligations, and then goes to
sleep, unaware that he or she likely committed several crimes that day.” Harvey A. Silvergate, Three
Felonies a Day: How the Feds Target the Innocent
xxxvi (2011). The federal government accounts for at
least 4,000 of such laws, while Texas alone has more
than 1,700 crimes on the books, including the very
broad tampering statute at issue in this case. Overcriminalization, Right on Crime. 5
Other Texas criminal offenses—all of which carry
the risk of incarceration—include a broadly defined
“[f]raud in fishing tournaments,” which is a Class A
5 Available at https://rightoncrime.com/initiatives/overcrim-
inalization/ (last viewed Apr. 18, 2023).
33
misdemeanor, punishable by up to a year in jail, Tex.
Parks & Wild. Code § 66.023; “[m]islabel[ing] a container of citrus fruit,” a Class B misdemeanor, which
can land a person in jail for 180 days, Tex. Agr. Code
§ 93.061(4), 93.062; and “[c]ausing pecans to fall from
a pecan tree by any means, including by thrashing,” a
Class C misdemeanor that comes with a nice side of
three months in jail, Tex. Gov’t Code § 3101.010.
Each of these laws, often broad or outdated, supplies government officials with discretion to use the
arrest power to punish their critics. The mere existence of these excuses to arrest makes it more likely
that “officers [would] abuse their authority by making
an otherwise lawful arrest for an unconstitutional
reason.” Nieves, 139 S. Ct. at 1731 (Gorsuch, J., concurring in part and dissenting in part). Under the decision below, in other words, government critics
should stay away from pecan trees.
Consider these examples of premeditated and deliberate conduct, where evidence of malice is quite obvious but there is also, technically, probable cause
sufficient to justify an arrest:
•
In Texas, a reporter who criticized her local
police department through posting videos
on her social media websites was arrested
for “solicit[ing] * * * from a public servant
information that: (1) the public servant had
access to by means of his office or employment; and (2) has not been made public.”
Tex. Penal Code § 39.06(c). The arrest happened six months after the relevant incident; “local officials have never brought a
34
prosecution” under that statute “in the
nearly three-decade history of that provision;” and the police department on several
previous occasions tried to intimidate the
reporter into stopping her coverage.
Villarreal v. City of Laredo, 44 F.4th 363, 368 (5th Cir.
2022) (vacated, pending en banc review). 6
•
In Ohio, a local man who posted a parody of
a police department on Facebook was arrested under a statute that prohibited people from “knowingly us[ing] any computer *
* * or the internet so as to disrupt, interrupt, or impair the functions of any police *
* * operations.” Ohio Rev. Code § 2909.04.
The arrest occurred a month after the parody account had been deleted; and there
was no disturbance of the police department
activities, other than several citizens calling
on the non-emergency line “to alert the city”
In Villarreal, the Fifth Circuit did not engage with the
question of whether Nieves barred the journalist’s retaliatory arrest claim because it dismissed the claim on the ground that the
journalist’s speech wasn’t chilled. 44 F.4th at 374; see also Pet.
App. 33a (“Villarreal was different in kind and did not address
the issue we face here. * * * Indeed, Villarreal did not address—
nor did it even cite—Nieves or Lozman, the cases both parties
recognize govern this case.”). The case was recently reheard en
banc on the question of whether qualified immunity shields police officers given that they acted under a statute when they infringed on a journalist’s right to ask questions of public officials.
The en banc case will not address the correct interpretation of
Nieves or the split with the Seventh and Ninth Circuits.
6
35
to the existence of the parody page and “to
verify” that it was not the official page.
Novak v. City of Parma, 33 F.4th 296, 303 (6th Cir.
2022), cert. denied 143 S. Ct. 773 (2023).
•
In Minnesota, a bridge safety consultant
who went on national news channels and
discussed the failure of Minnesota Department of Transportation’s inspections of the
I-35W bridge before its 2007 collapse, was
arrested under a statute making it illegal to
“intentionally * * * trespass[] on the premises of another,” Minn. Stat. § 609.605 subdiv. 1(b)(3), for entering government property without authorization, even though he
left as soon as he was ordered and even
though one of the officers commented that
the consultant needed to be “locked up” for
talking to news channels.
Galarnyk v. Fraser, 687 F.3d 1070, 1073 (8th Cir.
2012).
2. The case below fits this pattern to a T. Gonzalez was a prominent government critic who petitioned
her government to remove a city manager. Two
months after she unwittingly put the petition into her
binder, there was a warrant issued for her arrest.
Gonzalez was charged with “intentionally destroy[ing], conceal[ing], remov[ing], or otherwise impair[ing] the verity, legibility, or availability of a government record.” Tex. Penal Code § 37.10(a)(3). As
Judge Oldham pointed out in his dissent, “government employees routinely—with intent and without
36
it—take stacks of papers before, during, and after
meetings.” Pet. App. 60a (Oldham, J., dissenting). If
this statute were used to punish this type of a conduct, “there should be dozens if not hundreds of arrests of officeholders and staffers during every single
legislative biennium.” Id. at 60a. Instead, there are
none. What there is plenty of, however, is evidence
that respondents used the statute as a pretext to punish Gonzalez for criticizing them.
3. This case is a great vehicle for resolving the
questions presented, which were outcome-determinative below. The district court denied respondents’ motion to dismiss and held that probable cause did not
preclude Gonzalez’s claim for retaliatory arrest. The
Fifth Circuit reversed solely because it reluctantly determined that probable cause did preclude such a
claim. Pet. App. 33a (“Were we writing on a blank
slate, we may well agree with our distinguished colleague.”). The Fifth Circuit produced three separate
opinions, including two different dissents, with Judge
Ho arguing that Gonzalez met her burden under the
Nieves exception and Judge Oldham, while agreeing
with that, also stating that “the more relevant rule
appears to come from Lozman.” Pet. App. 55a (Oldham, J., dissenting). If this Court resolves Gonzalez’s
case in line with the Seventh and Ninth Circuits, then
she prevails and her case goes back to the district
court. If this Court resolves Gonzalez’s claim by holding that the Nieves rule does not apply in the first
place, in line with the Sixth Circuit’s discussion and
Judge Oldham’s dissent, then she again prevails and
her case goes back to the district court.
37
This Court should intervene now to resolve disagreements between the circuits and assure that government officials who maliciously scour the law books
for a crime to silence a critic do not get off scot-free in
the face of objective evidence of retaliation.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
DANA BERLINER
ANYA BIDWELL
Counsel of Record
PATRICK JAICOMO
WILL ARONIN
INSTITUTE FOR JUSTICE
901 N. Glebe Rd.
Ste. 900
Arlington, VA 22203
(703) 682-9320
abidwell@ij.org
Counsel for Petitioner
APRIL 20, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.